Workplace Legalities Update: Marijuana Use and Discrimination
Disclaimer: the information provided herein is not legal advice and should not be relied upon as such.
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Workplace Sexual Harassment
Complaints Filed With DHR
Discrimination Claims
Marijuana
Discrimination
Labor Law
201-d
•
Political activities
•
Recreational activities
•
Membership in a union
•
Refusal to attend employer-sponsored
meeting or speech regarding religious or
political matters
•
Legal use of “consumable products
including cannabis”
Marijuana in the Workplace
Labor Law 201-d
Employers are prohibited from discriminating against employees
based on employee’s LEGAL use of marijuana:
What is legal
use?
Legal Use = 21 years or older
Illegal Use:
•
Driving while using/under the influence
•
Where smoking tobacco is prohibited
•
Sell without a license
•
Federal land
What are Work Hours?
What is Employer’s Premises?
•
Company property
•
Worksite
•
Company vehicles
•
Any areas used by employees (rest breaks, etc.)
•
NOT: remote workplace/working at home
What to Do if Employee is Using During Work Hours or on
Employer’s Premises?
Drug Testing
Exceptions:
•
Employees working outside New York State
•
Federal or state law requires drug testing or drug free position:
•
E.g. drivers of commercial motor vehicles (federal & state law)
•
Collective Bargaining Agreement
Medical Marijuana
•
Disability
•
Can you accommodate without undue hardship to
your business?
Marijuana Updates
Drug policy in CBA will be enforced, even if it prohibits use of
medically prescribed marijuana
•
Employee required to test negative for marijuana prior to
returning to work per CBA, 7/28/23 appellate court decision
Federal Labor Law
Lion Elastomasters LLC – NLRB Decision May 1, 2023
•
Increased protections for all speech during “concerted
activity” is protected
•
Certain situations protection applies to vulgar, racist,
inappropriate speech
•
Concerted activity = activity raising concerns about working
conditions
•
Different weight if speech made to management, social
media posts, co-workers, or on the picket line
New Laws in NY State
a.
Wage disclosure law (9/17/23)
b.
New model sexual harassment policy (Apr. 2023)
c.
Whistleblower protections increased (2022)
d.
Nursing mother accommodations (6/7/23)
e.
Social media privacy – cannot ask employees for access to
information in any ‘personal account’ (effective 3/12/24)
f.
Notice eligibility unemployment benefits expanded
(11/13/23)
g.
Prohibition on mandatory meetings re: employer’s political
or religious views (Sept. 2023)
Links:
New model sexual harassment policy (Apr. 2023):
https://www.ny.gov/combating-sexual-harassment-
workplace/sexual-harassment-prevention-model-policy-and-training
Unemployment form:
https://dol.ny.gov/system/files/documents/2021/02/ia12_3.pdf
Explore the latest in employment law with a focus on workplace implications of legal marijuana use and discrimination issues. Learn about trends, claims, and employer obligations. Stay informed to navigate legal complexities effectively.
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Disclaimer: the information provided herein is not legal advice and should not be relied upon as such.
EMPLOYMENT LAW UPDATE Stacey Trien strien@adamsleclair.law (585) 327-4110
Trends in Trends in Discrimination Discrimination Claims Claims
Workplace Sexual Harassment Complaints Filed With DHR 900 810 800 700 600 500 401 388 400 300 200 100 0 2020 2020 2021 2021 2022 2022
Discrimination Claims Sexual Harassment Disability Retaliation
Political activities Recreational activities Membership in a union Refusal to attend employer-sponsored meeting or speech regarding religious or political matters Legal use of consumable products including cannabis Marijuana Discrimination Labor Law 201-d
Marijuana in the Workplace Labor Law 201-d Employers are prohibited from discriminating against employees based on employee s LEGAL use of marijuana: Without use of employer s equipment or property Outside of Work Hours Outside the Workplace
Legal Use = 21 years or older Illegal Use: Driving while using/under the influence Where smoking tobacco is prohibited Sell without a license Federal land What is legal use?
What are Work Hours? MEAL PERIODS PAID AND UNPAID BREAKS ENGAGED IN WORK
What is Employers Premises? Company property Worksite Company vehicles Any areas used by employees (rest breaks, etc.) NOT: remote workplace/working at home
What to Do if Employee is Using During Work Hours or on Employer s Premises? Employee manifests specific articulable symptoms of impairment that: Decrease Interfere with your obligation to provide a safe workplace performance of their duties
Drug Testing Pre-Employment Testing Testing on the Job Not unless state or federal law requires E.g. driving commercial vehicle (federal law requires) Cannot use testing to determine if someone is impaired Can test if state/federal law requires drug testing
Exceptions: Employees working outside New York State Federal or state law requires drug testing or drug free position: E.g. drivers of commercial motor vehicles (federal & state law) Collective Bargaining Agreement
Medical Marijuana Disability Can you accommodate without undue hardship to your business?
Marijuana Updates Drug policy in CBA will be enforced, even if it prohibits use of medically prescribed marijuana Employee required to test negative for marijuana prior to returning to work per CBA, 7/28/23 appellate court decision
Federal Labor Law Lion Elastomasters LLC NLRB Decision May 1, 2023 Increased protections for all speech during concerted activity is protected Certain situations protection applies to vulgar, racist, inappropriate speech Concerted activity = activity raising concerns about working conditions Different weight if speech made to management, social media posts, co-workers, or on the picket line
New Laws in NY State a. Wage disclosure law (9/17/23) b. New model sexual harassment policy (Apr. 2023) c. Whistleblower protections increased (2022) d. Nursing mother accommodations (6/7/23) e. Social media privacy cannot ask employees for access to information in any personal account (effective 3/12/24) f. Notice eligibility unemployment benefits expanded (11/13/23) g. Prohibition on mandatory meetings re: employer s political or religious views (Sept. 2023)
Links: New model sexual harassment policy (Apr. 2023): https://www.ny.gov/combating-sexual-harassment- workplace/sexual-harassment-prevention-model-policy-and-training Unemployment form: https://dol.ny.gov/system/files/documents/2021/02/ia12_3.pdf
